R v Fry
[2021] ACTSC 138
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Fry |
| Citation: | [2021] ACTSC 138 |
| Hearing Date: | 8 January 2021 |
| Decision Date: | 12 January 2021 |
| Before: | Refshauge AJ |
Decision: | 1. | Douglas John Fry be convicted of the offence of forcible confinement on 3 May 2020 and be sentenced to 1 year and 11 months imprisonment, to commence on 27 |
| September 2020 and end on 26 August 2022. | ||
| 2. | Douglas John Fry be convicted of the offence of assault occasioning actual bodily harm on 28 April 2020 and be sentenced to 8 months imprisonment, to commence on 27 June 2022 and end on 26 February 2023. | |
| 3. | Douglas John Fry be convicted of the offence of dishonestly driving a motor vehicle without the owner's consent and be sentenced to 8 months imprisonment, to commence on 27 February 2023 and end on 26 October 2023. | |
| 4. | Douglas John Fry be convicted of possessing a drug of dependence and be sentenced to 1 months imprisonment, to commence on 27 September 2023 and end on 26 October 2023. | |
| 5. | A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for him for a period of 12 months from today, 12 January 2021, in respect of the offence of forcible confinement, the primary offence, of which he has been convicted and for which he has been sentenced. | |
| 6. | That Order be extended to the offences of dishonestly driving a motor vehicle without the owner's consent, possession of a drug of dependence and assault occasioning actual bodily harm, of which he has also been convicted and for which he has also been sentenced, being associated offences to the primary offence. | |
| 7. | It be noted that convictions for the primary offence and associated offences have been recorded and sentences have been imposed for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order as part of the custodial part of the Order. | |
| 8. | The total sentence of three years and one months imprisonment, being the total of the sentences for the primary offence and the associated offences, be suspended from today, 12 January 2021, until 26 October 2023, under s 80W of the Crimes (Sentencing) Act 2005 (ACT). | |
| 9. | Douglas John Fry be required to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 21 months and 15 days, from 12 January 2022 to 26 October 2023, with a probation | |
| condition that he accept the supervision of the delegate, for the period of the Good Behaviour Order or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him. | ||
| 10. | For the treatment and supervision part of the Drug and Alcohol Treatment Order, Douglas John Fry be required to comply with the core conditions of the Order as set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of that Order. | |
| 11. | Douglas John Fry be required to complete the 13-week day program provided by Canberra Recovery Services, and such other programs of counselling, treatment, case | |
| management or urinalysis as may be required by any member of the Treatment Order Team or by the Court from time to time. | ||
| 12. | Douglas John Fry be directed that, in consultation with | |
| his case manager, to submit himself – at a time during | ||
| the Drug and Alcohol Treatment Order considered | ||
| appropriate by his case manager – for assessment for a | ||
| domestic violence perpetrator program, as recommended by his case manager, and if he is found suitable, that he complete that program. | ||
| 13. | Douglas John Fry be directed to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means. | |
| 14. | Douglas John Fry be directed to appear in Court on 22 January 2021 at 11:30 am and he be directed to attend the Court Registry before leaving the Court Precinct | |
| today to sign the sealed copy of the Drug and Alcohol Treatment Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – seriousness of domestic violence offences – forcible confinement – assault occasioning actual bodily harm – dishonestly driving a |
| motor vehicle without the owner’s consent – possessing a drug of dependence – Drug and Alcohol Treatment Order made | |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33(1)(za), 46K, 80W, 80Y; Table 46K Crimes Act 1900 (ACT) ss 24, 34 Criminal Code 2002 (ACT) s 318(2) Drugs of Dependence Act 1989 (ACT) s 169(1) Magistrates Court Act 1930 (ACT) ss 90A, 90B Public Health Act 1997 (ACT) s 135A Supreme Court Act 1933 (ACT) Pt 8 |
| Cases Cited: | An Inquest into the Death of Tania Louise Klemke [2018] ACTCD 18 Bui v The Queen [2015] ACTCA 5 Gillard v The Queen [2016] ACTCA 50 Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Booth [2017] ACTSC 191 R v Catanzariti [2014] ACTSC 333 R v Cowling [2019] ACTSC 138 R v Crawford (No 1) [2020] ACTSC 245 R v DK [2016] ACTCA 7 R v Donovan [1934] 2 KB 498 R v East [2015] ACTSC 54 R v Eichmann [2019] ACTSC 212 R v Eimerl [2015] ACTSC 72 R v Forrest (No 2) [2017] ACTSC 83 R v HC [2018] ACTSC 49 R v Massey (No 1) [2020] ACTSC 256 R v Naqvi [2016] ACTSC 345 R v Ndlovu [2017] ACTSC 244 R v Roux (No 2) [2015] ACTSC 361 R v Smith [2016] ACTSC 317 R v Stanley [2015] ACTSC 322 R v TL (No 2) [2016] ACTSC 289 R v Tonna (No 1) [2020] ACTSC 360 R v Williams [2016] ACTSC 389 Smejlis v Matthews [2004] WASCA 158 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
| Text Cited: | Theodore Bennett, ‘Locating the Body in “Bodily Harm”’ (2019) |
| 45(2) University of Western Australia Law Review 37 | |
| Parties: | The Queen (Crown) |
| Douglas John Fry (Offender) | |
| Representation: | Counsel |
| C Muthurajah, M Dyason (Crown) B Morrisroe (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) C Natoli (Offender) | |
| File Numbers: | SCC 249 of 2020 |
| SCC 250 of 2020 | |
| REFSHAUGE AJ: | |
| Introduction |
1. Violence between persons in a relationship is unacceptable, and it is heartening that Australian governments have acknowledged the need not merely to address its occurrences and the mistaken perception that minimises such violence, but also to address the causes of it and allocate funds for that purpose. The courts, too, must do their part, making it clear to the community that such behaviour will not be tolerated.
2. In this context, I must sentence Douglas John Fry for offences to which he has pleaded guilty, including family violence offences of forcible confinement and assault occasioning actual bodily harm, as well as offences of dishonestly driving a motor vehicle without the owner's consent and of possessing a drug of dependence.
3. In the sentencing hearing, I received and admitted into evidence the Crown's Tender Bundle which, apart from the certificates under ss 90A and 90B of the Magistrates Court Act 1930 (ACT) and attachments, included an Agreed Statement of Facts, Mr Fry's Criminal History, a Pre-Sentence Report dated 27 October 2020, the ACT Government
Analytical Laboratory’s Certificate, under s 135A of the Public Health Act 1997 (ACT),
dated 18 May 2020, a Mental Health Brief Assessment Report dated 21 October 2020, two Drug and Alcohol Treatment Assessments (Suitability Assessments), being those made under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), namely a Drug and Alcohol Treatment Assessment by ACT Corrective Services dated 17 December 2020 and a Drug and Alcohol Sentencing List Suitability Assessment by the Canberra Health Services dated 18 December 2020, photographs
of the victim’s injuries on 3 August 2020, and medical records of the victim of 28 April
2020, from Calvary Public Hospital, and of 4 and 5 May 2020, from the Canberra
Hospital.4. I also received a Mental Health Care Plan dated 3 November 2020. I rejected one statement in each of the Suitability Assessment Reports in the Crown Tender Bundle, which I struck through in the documents and on which I will not rely, but otherwise all these documents were received without objection or challenge, save that it was pointed out that a reference to some charges which Mr Fry was said to be facing had been resolved since the reports were prepared.
5. From this material, I make the following findings.
The Facts
6. On 20 April 2020, Mr Fry was found by police washing a Toyota Camry sedan at a carwash in Gungahlin. The motor vehicle had been hired by another person from a hire car company at the Canberra Airport, but was returned on 20 February 2020 after hours and left at 6:39 pm in the secure parking area of the airport with the keys inside. At 7:56 pm, an unknown person was seen to have driven it out of the parking area without the permission of the hire car company, who on 3 March 2020 reported to police that it had been stolen, having given no person permission to drive it after its return.
7. Mr Fry told police that he had driven the car to the carwash with two other persons to wash it. Police spoke to those two people. When later interviewed by police, Mr Fry admitted that he had been driving the car since January or February 2020, obviously mistaken about precise dates, and that he knew it was a hire car. He did not know that it had been stolen, but he believed that the hire fees had not been paid or that the payment of them was overdue. He accepted that he did not have the consent of any hire company to drive the vehicle. These facts constituted the offence of dishonestly driving a motor vehicle without the owner's consent.
8. When police searched the car, they located some items, including a clip seal bag containing a white, crystalline substance which was analysed to be 0.4 grams of methamphetamine. Mr Fry, in the interview, denied that the drugs were his, though he did admit that he was a consumer of methamphetamine and had in fact consumed a point when he saw police approaching. These facts were the basis of the charge of possessing a drug of dependence.
9. On 28 April 2020, Mr Fry was at the Dickson home of a woman with whom he had been in an intimate relationship on and off for about nine years. Mr Fry was walking around the lounge room with a metal pole, looking out the window at cars driving past and becoming suspicious. He threatened his former partner, became aggressive, and slapped her head several times. The woman later went to sleep and when she awoke, she felt her head hurting.
10. Mr Fry told her that he was going to take their car, but she said that he could not do so, as she needed it. She was holding the car keys and he grabbed her arm, pulling her hand backwards towards her wrist, causing her significant pain in her hand and arm, which she continued to feel later in the day, such that she asked Mr Fry to take her to hospital. He did so and she was admitted for a short time before being discharged.
11. The victim sustained bruising and swelling to her left arm, wrist, hand and finger, and continued to feel pain that afternoon, so that she went to the hospital, as I have noted. She continued to feel pain and suffer limited mobility to her arm and hand for some days. It was these facts that founded the charge of assault occasioning actual bodily harm.
12. On 3 May 2020, Mr Fry was at the Dickson home of his former partner where she was
asleep. He woke her and started yelling at her, saying: ‘We need to get out of here now. Get up. I'll tell you later.’ They got into their car and Mr Fry drove away, at first
around Dickson, where he became aggressive and violent towards her, punching her in the head several times. The victim became scared for her safety, fearful of Mr Fry's violent behaviour.
13. Mr Fry drove at speed towards Sutton, New South Wales, also causing the victim fear. In fact, at one point, he drove very fast towards a tree on the side of the road before quickly swerving to avoid a collision with it at the last moment. It must have been a quite terrifying experience for the victim.
14. When he arrived at Sutton, Mr Fry turned off onto a dirt road away from the highway and stopped the car. The victim tried to calm Mr Fry down and prevent him from further assaulting her. He continued yelling at her however, referring to her messaging people through her mobile phone days earlier. He then took her phone and smashed it and threw it out of the car. He punched the victim in the head and arms several times, using
both of his fists, yelling: ‘It's your fault. I can't trust you.’ She wanted to leave the car,
but was too frightened that Mr Fry would catch her and kill her.
15. Mr Fry then drove the car back to the highway, doing ‘burnouts’ along the way. He
drove to the Eaglehawk Service Station and the victim asked to go to the bathroom, but despite driving to the Service Station, he refused to let her out of the car. She asked him for a soft drink, as she needed sugar for her diabetes, and Mr Fry went inside and bought food and drinks for both of them.
16. He then drove both of them to Canberra, turning off at Majura Road, and pulled over near the Gun Club. He stopped the car and told the victim to relieve herself there. The victim thought about running away, but was too scared to do so.
17. Mr Fry then drove towards Hume and punched the victim in the head with one hand along the way. He drove to a carwash, again punching her in the head multiple times.
18. They drove to Calwell, stopping briefly at the home of a friend of the victim, and then to Mr Fry's apartment, where he went in to collect a pipe to smoke methamphetamine and to clean the apartment up in anticipation of his housemate returning that night. The victim remained in the car because she felt coerced to do so and, when Mr Fry returned with the pipe, they both smoked methamphetamine.
19. In an attempt to calm Mr Fry down and protect herself from further assaults, the victim suggested that she would pay for their stay in a hotel room with a spa for the night. They drove to the Woden library to access the Wi-Fi in order to find a room, but could not find one in the area, so Mr Fry drove to Civic, again punching the victim as he was driving.
20. Each time the car stopped at traffic lights, the victim wanted to get out of the car, but was too frightened of him catching her, especially as she had no phone to call for help.
21. They arrived at a hotel in Civic and the victim got out to book a room. Mr Fry told her that if she ran away, he would kill her son. The victim found the hotel reception closed, so she returned to the car and suggested she try an adjacent accommodation venue. She did so, checking in to a room by herself, from where she rang her mother, who called the police. The police then called the victim and later attended at her room, where she told the police that Mr Fry had caused her highly distressed state. They arranged for the victim to be transported to the Canberra Hospital by ambulance.
22. When later talking to the police, the victim explained that each time Mr Fry had punched her, it was 5 to 10 times in quick succession. She was too frightened, however, to provide them with a formal interview. Photographs later taken by police of her injuries showed significant bruising on her forearm, hand and face.
The Proceedings
23. Police arrested Mr Fry on 27 May 2020 and charged him with unlawfully confining the victim and with assault occasioning actual bodily harm. When he appeared in the Magistrates Court the next day, Mr Fry was remanded in custody. On 28 July 2020, after several adjournments, Mr Fry entered a plea of not guilty to both charges.
24. The proceedings were adjourned to 8 September 2020, on which date the police charged Mr Fry also with the offences of dishonestly driving a motor vehicle without the owner's consent and possession of a prohibited drug. He pleaded guilty to both of these charges at the earliest opportunity to do so and remained in custody.
25. On 15 September 2020, he indicated that he was intending to plead guilty to the other charges, but on 22 September 2020 he only pleaded guilty to the charge of assault occasioning actual bodily harm and maintained his plea of not guilty to the charge of unlawful confinement. A Forensic Mental Health Report and a Pre-Sentence Report were ordered. These were in the Crown's Tender Bundle, to which I have referred above (at [3]). The proceedings were originally listed for hearing on 3 November 2020, but on 20 October 2020 that was changed to 4 November 2020.
26. On 30 October 2020, however, Mr Fry indicated to the prosecution that he would plead guilty to the charge of unlawful confinement, a plea that was formally entered on 4 November 2020. On that date, he was committed to this Court for sentence on the three indictable charges, and the charge of possession of a prohibited drug was transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
27. Mr Fry appeared in this Court on 13 November 2020, when I ordered an assessment for his eligibility to be subject to a Suitability Assessment for a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). He was assessed as eligible that day and, upon receiving that assessment, I ordered the Suitability Assessments.
28. I listed the proceedings for sentence on 8 January 2021. Mr Fry remained in custody during this time. On 5 July 2020, however, he had been sentenced in the ACT Magistrates Court for unrelated charges to imprisonment from that day to 4 November 2020, a total of 123 days. He has been in custody on the present charges for 108 days.
The Offences
29. It is important to consider the nature and seriousness of the offences in order to impose a just and adequate sentence. That requires attention to the statutory maximum penalties which, as pointed out in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [30]-[31], provide a yardstick against which the seriousness of the offences can be judged, and to which a sentencer needs to pay careful attention: see Bui v The Queen [2015] ACTCA 5 at [12].
30. The offence of forcible confinement is made a crime by s 34 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of 10 years imprisonment. By that yardstick, it is a serious offence.
31. Every offence, however, can be committed in various ways, which can show greater or lesser levels of seriousness. The courts have identified various factors that are relevant to this assessment.
32. In R v Williams [2016] ACTSC 389 at [53], I set out a range of factors that should be considered in assessing the objective seriousness of the offence. These were:
(a) the length of the unlawful confinement; (b) the extent that it was premeditated or planned; (c) the way in which it was effected; (d) the purpose of it; (e)
the conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour;
(f) the extent of the fear instilled; and (g) the injuries inflicted. 33. This is not, of course, an exhaustive list of relevant considerations. A court must take the whole of the facts and circumstances of the offending into account. The evidence about the length of the confinement was not clear. The Crown submitted that it was at least of one hour in duration. Mr Fry did not contest that, nor when the Crown submitted that it may have been longer.
34. It seems to me that this is a very short assessment and one hour would be the absolute
minimum time the journey would have taken. It was likely that the trip – from departing
from Dickson and travelling through that suburb to Sutton, then stopping along the dirt road and driving back to Eaglehawk, stopping to purchase food and drinks, then driving to the Gun Club and stopping before driving to Hume, stopping there at the carwash, then driving to Calwell and again stopping, only to drive to Waramanga, where Mr Fry spent some time cleaning the apartment before driving to Woden to search for hotels
and then finally driving to Civic – could not have physically been achieved in less than
an hour and a half, and even that calculation gives very limited time to the stops, including to the purchase of food, the cleaning of the apartment and the searching for hotels.
35. While this is not a very lengthy period (compared to, for example, R v Naqvi [2016]
ACTSC 345, where the confinement was for ‘about one week’: at [25]), nor was it a
short period, especially compared to some (for example, 20 minutes in R v Ndlovu [2017] ACTSC 244, R v Smith [2016] ACTSC 317 and R v Catanzariti [2014] ACTSC 333).
36. There is no evidence that the enterprise was planned or premeditated. There was no physical violence that forced the victim into the car initially, but, when she did, Mr Fry became violent, was physically abusive on a large number of occasions during the period, and was quite restrictive, for example, when he refused to allow her to go to the bathroom, and humiliating when he made her relieve herself by the roadside.
37. It is difficult to see any purpose for the confinement, such as to coerce the victim to do or refrain from doing anything, though there seems to be an element of punishment or controlling behaviour. There was significant violence during the confinement, which resulted in police and paramedics considering that she should be taken to hospital, though she was not admitted for a long period.
38. The victim did say that she felt significant pain from where Mr Fry hit her arms and the photographs of her arm, hand and face show obvious and extensive bruising, which was noticed clearly by the treating medical practitioner at the Canberra Hospital, though there was no fracture.
39. The sentence needs to recognise the assaults during the period of confinement. Regrettably, the victim has not provided a Victim Impact Statement, but I can accept that the victim must have been very scared, probably terrified, during the experience. She felt unable to leave and fearful that, if she did so, Mr Fry would become more violent. There was a further and despicable threat to hurt her son, though by then they were in Civic where she later felt safe enough to escape.
40. A further issue is that this was an offence committed between persons who were in an intimate relationship. It was, thus, an offence of family violence, which is an aggravating feature of the offending (Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 182; [34]). Indeed, as Elkaim J observed in R v HC [2018] ACTSC 49 at [3], offenders who commit such appalling offences should expect to be sentenced to a period of full-time custody.
41. I note, too, that a significant number of the punches were to the head of the victim. This is a vulnerable part of the body and constitutes an aggravating factor: see R v Stanley [2015] ACTSC 322 at [65].
42. The offence of assaulting a person occasioning actual bodily harm is an offence contrary to s 24 of the Crimes Act and attracts a maximum penalty of five years imprisonment. Clearly, the harm caused by an assault is very relevant to the objective seriousness of the offence. The harm has to be actual bodily harm.
43. The phrase ‘actual bodily harm’ has received considerable attention by the courts over the years: Theodore Bennett, ‘Locating the Body in “Bodily Harm”’ (2019) 45(2) University of Western Australia Law Review 37 at 40-1. A ‘time-honoured definition’
was given by the UK Court of King’s Bench in R v Donovan [1934] 2 KB 498 at 509,
namely that:
[W]e think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health of comfort of the … [victim]. Such hurt or injury need
not be permanent, but must, no doubt, be more than merely transient and trifling.
44. In this case, the medical records from Calvary Public Hospital showed that the victim
presented with a ‘swollen left hand’, ‘ongoing pain this afternoon’, with ‘moderate effusion to [the] dorsal aspect of [her] hand, [with] bruising evident to [the] same area’ and ‘pain on palpitation to [the] 4th and 5th metacarpal’. The victim was ‘able to flex and extend [her] fingers with pain ++’.
45. I note that the victim told the staff at Calvary Hospital, quite wrongly, that she had caught her hand in the car door. This shows the effect of the coercion or domination that family violence brings and the conflicting emotions caused by others and to which victims are subject.
46. In Smejlis v Matthews [2004] WASCA 158 at [54]-[55], Jenkins J held that bruising is a form of bodily harm, but only considered actual bodily harm if it interferes with the health and comfort of the victim. Here, the ongoing pain when moving her fingers undoubtedly interferes with the victim's health and comfort. That she went to the hospital after continuing to suffer pain, which lasted some days, is clearly sufficient to constitute actual bodily harm. It was, however, not of a high degree of harm, but serious nevertheless.
47. Again, this violence was in a family context, which aggravated the offence (see R v TL (No 2) [2016] ACTSC 289 at [119]). There was, however, no planning or premeditation. On the other hand, Mr Fry did hit the victim in the head, a vulnerable part of the body, as I have noted above (at [42]). It was a relatively serious version of the offence, but not of significant seriousness.
48. The offence of dishonestly driving a motor vehicle without the owner's consent is prohibited by s 318(2) of the Criminal Code 2002 (ACT), which provides for a sentence of imprisonment for five years or a fine of $80,000 or both.
49. The relevant factors to consider in such a case include the following:
(a) the period of time during which the motor vehicle was being driven (R v Eichmann [2019] ACTSC 212 at [23]); (b) the deprivation from the use of his or her car suffered by the owner, especially if an individual, for whom the purchase may, after their home, be one of the most expensive (R v Forrest (No 2) [2017] ACTSC 83 at [75]); (c) loss or damage to the vehicle (R v Massey (No 1) [2020] ACTSC 256 at [55]); (d) its use in the commission of another crime (R v Booth [2017] ACTSC 191 at [11]); and (e) any inconvenience caused to the owner and possibly others, given their reliance on the car as a means of transport in Canberra (R v Roux (No 2) [2015] ACTSC 361 at [78]). 50. It was also set out in R v Massey (No 1) at [58]-[59] that the offence is apparently prevalent. Here, Mr Fry admitted to having driven the car for some months. The car was not owned by an individual, but by a hire company. That does not reduce the seriousness of the offence significantly, as it may no doubt have resulted in some loss of income for the company, though I have no evidence of that. It is not, however, aggravated by the taking of a valuable item of personal property and the loss of access to it by an individual.
51. None of the other aggravating features appear to be present here.
52. Finally, the offence of possession of a drug of dependence, namely methamphetamine, is criminalised by s 169(1) of the Drugs of Dependence Act 1989 (ACT), for which the legislature has provided a maximum penalty of two years imprisonment or a fine of $8,000, or both.
53. The amount of methamphetamine was, as the Crown properly and fairly admitted, low. It was the main relevant factor, which means that the objective seriousness of the particular offence is not particularly high.
Subjective Circumstances
54. Mr Fry was born 39 years ago in Victoria and lived with his parents and three siblings in a country town there. He was raised in a supportive and caring environment. He attended school and completed Year 11. He obtained a pilot's licence at age 16 and completed a vocational course, graduating as an automotive technician.
55. He has been employed. He worked in the automotive industry for ten years prior to 2017, and then as an employee in a government agency for approximately two years, until his incarceration, though the precise period was a little uncertain.
56. He has a good relationship with his parents and his sister, who is a farmer in Victoria.
57. Mr Fry's life has been significantly marred by tragedy. His eldest brother, a user of illicit drugs, committed suicide when Mr Fry was aged eight. His other older brother, who had also consumed illicit drugs and had been a member of a motorcycle gang, committed suicide when Mr Fry was 33.
58. In 2017, he was visiting a friend in Canberra, who was the owner of a dog described
as a ’staffy-cross-bull’. The dog attacked him and he retreated to the laundry and shut
himself in. The dog, however, then attacked the owner, his friend, and killed her. The details are set out in the Coroner's decision, An Inquest into the Death of Tania Louise Klemke [2018] ACTCD 18.
59. Unsurprisingly, these events left Mr Fry with mental health challenges. He has been diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder and anxiety. He has attempted suicide on at least two occasions. During the attempt at the ACT Watch House, he knocked his teeth, which have since been extracted, and which now limits his ability to eat solid foods. Other than this, his physical health is satisfactory.
60. He moved to Canberra in about 2002 for work and, it appears, to be nearer to his brother. He is currently a single man with no children. He did, however, have an intimate relationship with the victim of the violence offences. It was a troubled one, and
both of them used illicit drugs. It was described as a tumultuous ‘on-and-off’
relationship, with domestic violence and suspicions of infidelity as features of it. He
has had no contact with the victim since the offences.61. His substance abuse did not begin at an early age. He first consumed alcohol when he was 16 years old, but drinks sparingly, about once a week and with moderation.
62. He was introduced to methamphetamine when he was 26 years old. He was soon consuming daily. He had to sell drugs at one stage in order to fund his use. Prior to his incarceration, he was using half a gram to a gram per day. He was assessed as having a substantial problem with the drug.
63. He has abstained from use while in custody and for some months after his prior release. He has not used cannabis. He tried cocaine, but did not continue its use. Similarly, he tried gamma hydroxybutyrate (GHB) but did not like it and has not used since.
64. He has not contested the Crown's Statement of Facts and says that he can understand the effect of his offending on the victim. He has accommodation with a friend available if he is released from custody. The house has been assessed as suitable for his occupation in the community and the occupants have consented to him living there.
65. Mr Fry has a criminal history, but it is not particularly significant. He has been convicted of seven offences, the first of which was in 2007 when he was sentenced to four years imprisonment for supplying drugs. He has convictions for drug driving, criminal damage, affray, common assault, and driving while his licence was suspended. The slightly worrying offence is of failing to comply with his bail undertaking.
Sentencing Practice
66. Under s 33(1)(za) of the Sentencing Act, a court sentencing an offender is required to consider any sentencing practice of which it knows. This of course must be done in the context that there is no one single correct sentence (Gillard v The Queen [2016] ACTCA 50 at [46]) and that no sentence is a precedent (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 [57]).
67. Nevertheless, the Crown provided a helpful table of 26 offences for the offence of unlawful confinement in this Court from 2011 to 2020. The circumstances of each case were different; indeed, it is unlikely that any two cases would be the same.
68. The sentences ranged from nine months to four years and eight months imprisonment. Most were in the range of two to three years. The offenders varied in age between 15 years and 58 years old; a few had a significant criminal history, but most had a limited, minor or no criminal record.
69. The period of confinement ranged from a short period of time to a week. The conduct of the offender to the victim also varied in each case, from threatening in most cases, to assault in many. Almost all the victims were terrified, and quite a number suffered injuries.
70. Three cases were considered most comparable. In R v Cowling [2019] ACTSC 138, the victim and offender were in a relationship and the offender prevented her from leaving the vehicle in which they were travelling. He pulled her hair, pinched her shoulder and neck and punched her in the face several times. The period of confinement was unclear, but did not seem to be a long time. The victim was terrified and suffered injuries to her face, including bleeding, bruising, swelling, and pain and experienced difficulty breathing.
71. The offender was 27 years old and had a limited criminal history. He was assessed at the low risk of reoffending. He was sentenced to one year and eight months imprisonment, to be served by an Intensive Correction Order. It seems to me that Mr Fry's case is somewhat more serious, but not dissimilar to this case.
72. The second case was R v Eimerl [2015] ACTSC 72, in which the offender confined his mother in her own home for about two hours. There was no physical violence, although the victim was terrified. The offender was young, at 23 years old, with a very substantial criminal history and a medium to high risk of reoffending. The offence was committed while the offender was on parole. The offender was sentenced to two years and one month imprisonment.
73. It is difficult to compare that case with this case, for some factors are more serious and some factors are less serious or more mitigating. A sentence is not a mathematical exercise in adding periods of imprisonment for some factors and deducting for others: R v DK [2016] ACTCA 7 at [74]. Nevertheless, at the end of the day, that case has some comparability to the total criminality of this case.
74. The final case was R v East [2015] ACTSC 54. The offender was a carer for the victim, his partner, and forced her into a flat after an argument, where he took her mobile phone and assaulted her around the neck when she tried to leave, but, it appears, not otherwise. The confinement lasted five hours.
75. The offender was 28 years old and had some violence offences in his criminal history. He expressed a wish to engage with a counsellor. He was sentenced to 17 months imprisonment. This seems a less serious case than that of Mr Fry; nevertheless, it is helpful in assessing current sentencing practice.
76. In relation to the offence of assault occasioning actual bodily harm, I said this as to sentencing practice in R v Tonna (No 1) [2020] ACTSC 360 at [50]:
For assault occasioning actual bodily harm offences dealt with in the Supreme Court, the ACT Sentencing Database shows that 86 per cent resulted in sentences of imprisonment (excluding periodic detention), a little over a third being partially or wholly suspended. The terms were generally between 6 and 24 months. The sentences in the Magistrates Court naturally were more diverse and many were shorter. A much smaller percentage were sentences of imprisonment.
77. As to the offence of dishonestly driving a motor vehicle without the owner's consent, I considered sentencing practice in some detail in R v Massey (No 1) at [76]-[79]. The range seemed to be generally from 6 to 12 months imprisonment.
Conditional Liberty
78. Mr Fry was on conditional liberty at the time he committed these offences. That is, he had been granted bail for the offences for which he was later sentenced on 5 July 2020, as noted above (at [28]). The bail was conditioned upon the following, to:
(a) not assault, harass, threaten or intimidate the victim; (b) not contact, directly or indirectly, the victim; (c) not be within 100 m of the victim; and (d) not be in the suburb of Dickson, ACT. 79. During the course of the offending against the victim, he not only breached each of these conditions, but did so flagrantly. A breach of conditional liberty by offending is a matter of aggravation when sentencing for that offending. It does not increase the objective seriousness of the offence, but it does show an abuse of the opportunity that the liberty granted to the offender has offered.
Consideration
80. The Sentencing Act sets out in s 7 the purposes of sentencing in the Territory, and a court must have regard to them. In this case, the seriousness of family violence offences means that punishment and general deterrence are importantly relevant. In relation to the offence of dishonestly driving a motor vehicle without the owner's consent, the prevalence of the offence and the inconvenience it causes to people in Canberra means that general deterrence is important.
81. Mr Fry's short criminal history means that although specific deterrence is not so prominent, a sentence that will prevent him from continuing to offend is nonetheless relevant. This perhaps indicates the importance of rehabilitation generally, and of rehabilitating Mr Fry more specifically, which may be more likely to be successful as he has employable skills and has taken steps to address his mental health issues while in custody.
82. He has also been assessed as at a medium to high risk of reoffending, the major risk being his mental health. He has, however, had a comprehensive Mental Health Care Plan prepared, which addresses his PTSD and his mood and anxiety symptoms, as well as other issues. Compliance with it should make a substantial difference to his antisocial behaviour.
83. It does not, however, directly address his relationship issues, which the offences have highlighted, and, without minimising them, it would appear appropriate to address these issues through counselling, such as with the Domestic Violence Crisis Service.
84. There is some relevance in protecting the community, so far as the offences of April and May 2020 are concerned. It is important to hold Mr Fry accountable and to denounce such conduct by him, particularly in relation to the family violence offences and also to recognise the harm suffered by the victim. In my view, these matters and the objective seriousness of the offences and the circumstances mean that no other sentence but a sentence of imprisonment is warranted.
85. Mr Fry pleaded guilty to the offences of 20 April 2020 at the earliest stage, namely at the first mention. This had significant utilitarian value and shows some remorse. Although his pleas to the other offences occurred much later, they were indicated before the actual hearing, though still late in the piece. It would have saved the prosecution some preparation and would have avoided the witnesses, especially the victim, having to give evidence, including being exposed to cross-examination.
86. I note the period of pre-sentence custody served by Mr Fry and will backdate the sentence to address this. As there are multiple sentences to be imposed, I must carefully consider the length of each sentence to ensure that Mr Fry is not punished twice, and also to consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct and contain common elements.
87. The offences of May 2020 are, to a limited extent, part of the same course of conduct as the possession of illicit drugs, but this is otherwise not a significant factor. Nevertheless, I have reviewed the length of the total sentence to be imposed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open a realistic prospect of reform and hope for Mr Fry to achieve his goals when he returns to the community.
Sentence
His Honour then spoke directly to the accused:
88. Mr Fry, please stand.
89. I convict you of the offence of forcible confinement on 3 May 2020. I sentence you to 1 year and 11 months imprisonment, to commence on 27 September 2020 and end on 26 August 2022, to take into account the 108 days of pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to two years and three months imprisonment.
90. I convict you of the offence of assault occasioning actual bodily harm on 28 April 2020. I sentence you to 8 months imprisonment, to commence on 27 June 2022 and end on 26 February 2023. That is to be cumulative as to six months on the sentence for the offence of forcible confinement. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
91. I convict you of the offence of dishonestly driving a motor vehicle without the owner's consent. I sentence you to 8 months imprisonment, to commence on 27 February 2023 and end on 26 October 2023. That is to be wholly cumulative on the sentence for assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
92. I convict you of possessing a drug of dependence. I sentence you to 1 months imprisonment, to commence on 27 September 2023 and end on 26 October 2023. That is to be wholly concurrent on the sentence for dishonestly driving a motor vehicle
without the owner’s consent. Had you not pleaded guilty, I would have sentenced you
to 6 weeks imprisonment.
93. Mr Fry, you may be seated.
94. The sentence I have imposed is of a total length of 3 years and 1 months imprisonment. I note that Mr Fry is not currently subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am also satisfied that he is likely to be resident in the ACT for the next 12 months. Accordingly, he is eligible for a Treatment Order.
95. I have read carefully the Pre-Sentence Report and the two Suitability Assessments (referred to above at [3]). They have been of considerable assistance in the preparation of these remarks. I have carefully considered the recommendations made in the two assessments, in both of which Mr Fry is recommended as suitable for a Treatment Order.
96. I note, too, that the Treatment Order has been explained to Mr Fry and that he has consented to the making of a Treatment Order. I am satisfied that he has had an opportunity to ask any questions about the Treatment Order and that he has given informed consent to the making of such an Order.
97. I note that Mr Fry has been accepted into the 13-week day program conducted by Canberra Recovery Services. It is also recommended that Mr Fry, at the end of such a program, participate in a program that addresses family violence.
98. I am satisfied on the balance of probabilities that Mr Fry is dependent on methamphetamine and that his dependence substantially contributed to the offence of forcible confinement. I have not identified any indicators of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act. Accordingly, I am satisfied that Mr Fry is eligible and suitable for a Treatment Order and that it is appropriate that one be made.
99. Finally, I note that although I have commenced the sentence of imprisonment to commence from 27 September 2020, which period from that date until today has been served in custody, and that sentence must now be suspended, this does not prevent Mr Fry from being subject to a Treatment Order, for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused again:
100. Mr Fry, please stand again.
101. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for a period of 12 months from today, 12 January 2021, in respect of the offence of forcible confinement, the primary offence, of which I have convicted you and for which I have sentenced you.
102. I extend that Order to the offences of dishonestly driving a motor vehicle without the owner's consent, possession of a drug of dependence and assault occasioning actual bodily harm, of which I have also convicted you and for which I have also sentenced you today, being associated offences to the primary offence.
103. I note that I have recorded convictions for the primary offence and associated offences and have imposed sentences for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order as part of the custodial part of the Order.
104. I suspend the total sentence of three years and one months imprisonment, being the total of the sentences for the primary offence and the associated offences, from today, 12 January 2021, until 26 October 2023, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
105. I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 21 months and 15 days, from 12 January 2022 to 26 October 2023, with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services, or his delegate, for the period of the Good Behaviour Order or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you.
106. For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions of the Order as set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of that Order.
107. Further, I also require you to complete the 13-week day program provided by Canberra Recovery Services, and such other programs of counselling, treatment, case management or urinalysis as may be required by any member of the Treatment Order Team or by the Court from time to time.
108. Further, I direct that, in consultation with your case manager, you submit yourself – at
a time during the Drug and Alcohol Treatment Order considered appropriate by your
case manager – for assessment for a domestic violence perpetrator program, as
recommended by your case manager, and that if you are found suitable, you complete
that program.109. I direct that you comply with any direction of the Court from time to time about attendance at Court in person or by electronic means.
110. I direct that you appear in Court on 22 January 2021 at 11:30 am and I direct that you attend the Court Registry before leaving the Court Precinct today to sign the sealed copy of the Drug and Alcohol Treatment Order.
111. Mr Fry, that is a lot of words; we lawyers deal in words. You may be understanding much of it, because you are intelligent and you have been in the courts before, but I need to summarise it for you and give you some points about the future.
112. I have indicated that these are very serious offences in total, particularly the family violence offences, justifying a sentence of three years and one months imprisonment. However, I am not requiring you to serve any more of that term than you have, to date, already served in custody, and I am allowing you the opportunity to rehabilitate yourself from the dependence that you have on methamphetamine, and any other drugs, by participating in a rehabilitation program.
113. That will require you, for the next 12 months, to be subject to supervision by this Court and you will see a lot of me in the next period of time. You have to come in in the first phase of the program once a week and we will catch up to see how it is going. If there are any problems, we can deal with those.
114. If you have failed in any way, then I can sanction you. That sanction includes sending you back to prison for a period of time, up to seven days, or cancelling the Treatment Order and sending you to serve the whole of the three years and one months sentence, less the period you have already served, depending on what progress you have made in the meantime.
115. So you are on a condition; you are at liberty conditional upon you taking the opportunity to rehabilitate. It is going to be a long process and there will be some bumps along the way. If there are difficulties, the point of coming back every week is to raise those difficulties so that we can address them.
116. Ignoring them, running away, not complying with directions that you are given, or not complying with the program, are all breaches of this Order and can lead to the Order being cancelled. If there are problems, we can try and resolve them and often we are able to do so. The worst thing you can do is run away and not come back. You are required to come back to the Court and discuss the problem and we will try and solve it.
117. I cannot say we can solve it every time; I cannot say that every breach is not worth a penalty of a brief period of imprisonment; I cannot say that I will never cancel the Order. Of course, those are all possible. But if you come back, then often we can sort it out, especially if you discuss those matters with your case manager. It is really important that you understand that.
118. The other thing that is really important in this program is honesty. Honesty is fundamental to the rehabilitation for drug dependency and you need to be honest to your counsellors, to your case manager, to the people that you are working with in the program, and, obviously, to the Court. Dishonesty to the court is very serious, because it could amount to perjury.
119. But honesty is important for other reasons. Being honest is advantageous. For instance, some people in this program find that they just have to take some drugs. Now, that is a breach and it is a serious breach and could result in further imprisonment. But if you are honest about it, and confess it, and address it, and talk about it, and try to resolve it, then that ameliorates the seriousness and reduces the otherwise seriousness of the sanction.
120. The other thing is not to use: not to use alcohol, not to use drugs. Now, that is rough. It is tough. You do not get dependent unless you want to use those things, but you have got to really be strong and show that rehabilitation is what you want, that your life is what you want to get back together.
121. I do not know whether there is any prospect of you being a pilot in the future, but if you reform now and get back into the community and behave properly and become a useful and sensible member of the community, it may be possible in due course.
122. So your objectives and goals may be able to be achieved, but only if you take this opportunity, if you really work at it and address your problems. Those problems are not just related to your drug dependency. Your family violence offences show that you have got some issues in relation to relationships, and if you want to have a relationship in the future, then you have got to address those. And so I have made an additional condition that you be assessed for a domestic violence perpetrator program, such as the Room for Change program run by the Domestic Violence Crisis Service, and if you are found suitable, that you undertake such a program. Because again, that is going to be important for you re-integrating back into the community.
123. So I will see you back here in a little less than a fortnight, on Friday week, and I will have a Progress Report from your case manager, who will talk to you and deal with that situation and anything that comes up and so on. I will want to see how it is going and indicate where we are going from here.
124. Before you leave here, you must go down to the Registry and sign the Order, because that is a formal commitment to undertake these advantages that I have given you and to deal with that.
125. I wish you every good luck. I am here to help you by sanctioning you if you fall by the wayside, but ultimately it is for your benefit. The Court will do all it can to try and ensure that your rehabilitation, if you are committed to it, is achieved and is successful.
126. You may be seated.
I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.
Associate: Samuel Xiang
Date: 9 July 2021
14
25
0